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OPTION AGREEMENT
by and between
SBS BROADCASTING S.A.
and
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD.
Dated as of February 21, 2000
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS......................................................3
ARTICLE II
GRANT OF OPTIONS.................................................3
Section 2.1 Grant of Call Option..........................3
Section 2.2 Grant of Put Option...........................4
Section 2.3 Grant of Third Party Option...................4
ARTICLE III
EXECUTION OF OPTIONS.............................................5
Section 3.1 Exercise Mechanics............................5
Section 3.2 Escrow Arrangements...........................7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES...................................8
Section 4.1 Representations and Warranties of
Seller ...........................................8
(a) Organization, Standing and Corporate Power.....8
(b) Notes..........................................8
(c) Authority; Enforcement.........................8
(d) Compliance with Obligations....................9
(e) Consents and Approvals.........................9
(f) Litigation....................................10
(g) ITI ..........................................10
(h) Interest on the Notes.........................10
Section 4.2 Representations and Warranties of
Purchaser .......................................10
(a) Organization, Standing and Corporate Power....10
(b) Authority; Enforcement........................11
(c) Compliance with Obligations....................11
(d) Consents and Approvals.........................12
(e) Litigation.....................................12
ARTICLE V
FURTHER AGREEMENTS..............................................12
Section 5.1 Sale and Purchase Agreement..................12
Section 5.2 Subsequent Default on Interest
Payments ........................................13
Section 5.3 Fees and Expenses............................14
ARTICLE VI
MISCELLANEOUS PROVISIONS........................................14
Section 6.1 Notices.....................................14
Section 6.2 Survival of Representations and
Warranties ......................................16
Section 6.3 Assignment..................................16
Section 6.4 Submission to Jurisdiction; Consent
to Service of Process.......................16
Section 6.5 Headings; Internal References...............17
Section 6.6 Governing Law...............................17
Section 6.7 Specific Performance........................17
Section 6.8 Counterparts................................17
Section 6.9 Severability................................17
Section 6.10 Entire Agreement............................17
ANNEXES
A Definitions
B Form of Call Option or
Third Party Option Exercise Notice
C Form of Put Option Notice
D Form of Escrow Agreement
E Form of Notice of Assignment
OPTION AGREEMENT
This OPTION AGREEMENT (this "Agreement") is dated as of February 21,
2000 and is by and between SBS Broadcasting S.A., a company organized under the
laws of Luxembourg ("Purchaser"), and Central European Media Enterprises Ltd., a
company organized under the laws of Bermuda ("Seller").
WHEREAS, Seller through wholly owned Subsidiaries holds
US$40,000,000 in aggregate principal amount of senior convertible notes (the
"Notes") of International Trading and Investments Holdings S.A., a company
organized under the laws of Luxembourg ("ITI"), issued pursuant to the Sale and
Purchase Agreement, dated December 10, 1998 (the "Sale and Purchase Agreement"),
between Seller and ITI, which Notes are convertible under certain circumstances
into bearer ordinary shares, nominal value FLUX50, of ITI ("ITI Shares");
WHEREAS, Seller wants to grant Purchaser a call option to purchase
the Notes for US$37,250,000 by delivery of notice to Seller on or prior to June
30, 2000 (subject to extension), on the terms and subject to the conditions set
forth herein;
WHEREAS, Purchaser wants to grant Seller a put option to sell the
Notes to Purchaser for US$25,000,000 by delivery of notice to Seller on or prior
to June 30, 2000 (subject to extension), on the terms and subject to the
conditions set forth herein;
WHEREAS, Seller wants to grant Purchaser an option exercisable in
the event of a third party offer for the Notes during the call option period to
purchase the Notes for the lesser of (i) the third party offer price and (ii)
US$40,000,000, on the terms and subject to the conditions set forth herein; and
WHEREAS, Purchaser and Seller want to provide for certain other
agreements relating to the Notes.
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NOW, THEREFORE, the parties, intending to be bound, hereby agree as
follows:
ARTICLE I
DEFINITIONS
Unless otherwise indicated, capitalized terms used herein and in the
Annexes to this Agreement have the meanings assigned to them in Annex A (with
terms defined in the singular having comparable meanings when used in the plural
and vice versa).
ARTICLE II
GRANT OF OPTIONS
Section 2.1 Grant of Call Option.
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(a) Seller hereby grants to Purchaser an irrevocable option (the
"Call Option") to require Seller to sell the Notes to Purchaser. The Call Option
shall be exercisable at any time from the date hereof to June 30, 2000 (the
"Call Option Period") in the manner described in Section 3.1, provided that the
Call Option Period shall be extended to September 30, 2000 in the event that
Seller exercises its put option extension rights pursuant to Section 2.2(a), and
provided, further, that the Call Option Period shall be extended in the event
that the Notes are pledged by Seller to Purchaser as collateral in connection
with the Slovenian Transaction to the earlier of (i) December 31, 2000 and (ii)
the date of release of the pledge of such Notes in connection with the
satisfaction of Seller's obligations relating to such transaction.
(b) The price payable by Purchaser for the Notes upon the exercise
of the Call Option (the "Call Option Price") shall be US$37,250,000 (the "Call
Option Base Price"), plus any unpaid interest on the Notes accrued from the most
recent interest payment date to the Option Settlement Date (as defined below),
provided that if the Call Option Period is extended in connection with a pledge
of the Notes to Seller pursuant to Section 2.2(a) the Call
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Option Base Price shall (i) increase to US$37,740,000 if the Call Option is
exercised on or after September 10, 2000 (unless Seller exercises its put option
extension rights pursuant to Section 2.2(a), in which case such increase shall
not take effect until October 1, 2000), and (ii) increase to US$38,210,000 if
the Call Option is exercised on or after December 10, 2000.
Section 2.2 Grant of Put Option.
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(a) Purchaser hereby grants an irrevocable option (the "Put Option")
to Seller to require Purchaser to purchase the Notes from Seller. The Put Option
shall be exercisable at any time from the date hereof to June 30, 2000 (the "Put
Option Period") in the manner described in Section 3.1, provided that Seller may
extend the Put Option Period to December 31, 2000 by delivery of written notice
to Purchaser prior to the expiration of the Put Option Period.
(b) The price payable by Purchaser for the Notes upon the exercise
of the Put Option (the "Put Option Price") shall be US$25,000,000, plus any
unpaid interest on the Notes accrued from the most recent interest payment date
to the Option Settlement Date (as defined below).
Section 2.3 Grant of Third Party Option.
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(a) Seller may continue to seek offers from third parties to
purchase the Notes during the term of this Agreement. If the Call Option and Put
Option have not been exercised and Seller receives prior to expiration of the
Call Option Period a bona fide written offer from a third party to purchase all
the Notes, Seller may after March 6, 2000 deliver to Purchaser a notice (the
"Third Party Offer Notice") setting forth (i) the Third Party Offer Price to be
paid for the Notes, and (ii) all material terms and conditions relating to such
offer, together with a certificate in form and substance reasonably acceptable
to Purchaser from outside legal counsel, independent auditors or financial
advisers to Seller or another third party reasonably acceptable to Purchaser
stating that the Offer Notice is true and accurate. Seller is not required to
identify in the Third Party Offer Notice the third party who has offered to
purchase the Notes. Upon receipt of the
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Third Party Offer Notice and certificate, Purchaser shall have the option (the
"Third Party Option") to purchase the Notes from Seller, which option must be
exercised in the manner described in Section 3.1 within three Business Days of
receipt of the Third Party Offer Notice and certificate. If Purchaser does not
exercise the Third Party Option during such three Business Day period, Seller
shall then be entitled to sell the Notes in accordance with the terms and
conditions set forth in the Third Party Offer Notice to the third party making
such offer for a period of five Business Days, after which Seller shall be
required to re-deliver a Third Party Offer Notice and certificate pursuant to
this paragraph (a) prior to any sale of the Notes to a third party. Purchaser
shall not be entitled to exercise the Call Option during the eight Business Day
period following valid delivery by the Seller of the Third Party Offer Notice
and certificate pursuant to this paragraph (a).
(b) The price payable by Purchaser for the Notes upon the exercise
of the Third Party Option (the "Third Party Option Price") shall be equal to the
lesser of (i) the Third Party Offer Price and (ii) US$40,000,000.
(c) In the event Purchaser does not exercise the Third Party Option,
Seller shall be entitled to accept the offer giving rise to such Third Party
Option, provided that if any of the material terms or conditions relating to
such offer change in any way, Seller shall deliver a Third Party Offer Notice
and certificate in respect of such revised offer to Purchaser in accordance with
paragraph (a) of this Section 2.3.
ARTICLE III
EXECUTION OF OPTIONS
Section 3.1 Exercise Mechanics.
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(a) Purchaser may exercise the Call Option or Third Party Option in
respect of all and not less than all the Notes by giving notice substantially in
the form set forth as Annex B in accordance with the requirements of Section
6.1.
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(b) Seller may exercise the Put Option in respect of all and not
less than all the Notes by giving notice to Purchaser substantially in the form
set forth as Annex C in accordance with requirements of Section 6.1.
(c) The party exercising its option shall nominate a date (the
"Option Settlement Date") in the notice delivered pursuant to paragraph (a) or
(b) above which shall be no earlier than two Business Days and no later than
five Business Days from the date of delivery of such notice. Seller shall notify
Purchaser in writing not less than one Business Day prior to the Option
Settlement Date of the amount of any unpaid interest on the Notes accrued from
the most recent interest payment date to the Option Settlement Date payable as
part of the Call Option Price or Put Option Price. The exercise of an option
pursuant to this Section 3.1 shall be irrevocable. On the Option Settlement
Date:
(i) Purchaser shall pay the applicable option price in United States
dollars in immediately available funds to Seller by wire transfer
as follows: (A) US$12,000,000 of such option price shall be paid
into the Escrow Account maintained by Seller with the Escrow
Agent for the benefit of Purchaser, subject to the terms set
forth in Section 3.2 below; and (B) the balance of such option
price shall be paid to the account of Seller specified by Seller
by written notice to Purchaser no later than one Business Day
prior to the Option Settlement Date; and
(ii) Seller shall deliver (or cause to be delivered) to Purchaser a
Note transfer form in respect of the Notes duly completed in
favor of Purchaser and shall take all action required under the
Sale and Purchase Agreement and such Notes and otherwise to
effect the transfer of all of Seller's right, title and interest
in and to the Notes to Purchaser free and clear of any claims,
pledges, liens, charges and encumbrances of any sort.
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(d) At the option of Purchaser, the obligations of Purchaser under
this Agreement to purchase the Notes and pay the applicable option price to
Seller on the Option Settlement Date shall be subject to the conditions
precedent that (i) the representations and warranties made by the Seller in this
Agreement shall have been true and correct when made, and (except for the
representations and warranties set forth in Sections 4.1(g) and 4.1(h)) shall be
true and correct on the Option Settlement Date as though such representations
and warranties were made on and as of such date; and (ii) the Seller shall have
performed and complied in all material respects with all agreements, obligations
and conditions required by this Agreement to be performed or complied with by
the Seller at or before the Option Settlement Date.
(e) At the option of Seller, the obligations of Seller under this
Agreement to consummate the sale of the Notes and deliver them to the Purchaser
on the Option Settlement Date shall be subject to the conditions precedent that
(i) the representations and warranties made by the Purchaser in this Agreement
shall have been true and correct when made, and shall be true and correct on the
Option Settlement Date as though such representations and warranties were made
on and as of such date, and (ii) the Purchaser shall have performed and complied
in all material respects with all agreements, obligations and conditions
required by the Agreement to be performed or complied with by the Purchaser at
or before the Option Settlement Date.
Section 3.2 Escrow Arrangements. On the Option Settlement Date,
Seller and Purchaser shall enter into an escrow agreement with the Escrow Agent
substantially in the form attached as Annex D. If the Slovenian Transaction
reaches Closing, at the date of such Closing and in connection therewith Seller
and Purchaser shall jointly deliver to the Escrow Agent a notice authorizing the
Escrow Agent to release from the Escrow Account and pay to Purchaser
US$12,000,000, and to release from the Escrow Account and pay to Seller any
amounts remaining in the Escrow Account. All fees and expenses of the Escrow
Agent shall be for the account of and paid jointly by Purchaser and by Seller
and shall not be drawn from the Escrow Account. If the Slovenian Transaction
does not reach
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Closing by June 30, 2000, Seller and Purchaser shall jointly deliver to the
Escrow Agent a notice authorizing the Escrow Agent to release all amounts in the
Escrow Account to Seller.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of Seller. Seller hereby
makes the following representations and warranties to Purchaser:
(a) Organization, Standing and Corporate Power. Seller and its Note
Holding Subsidiaries are each companies duly organized and validly existing
under the laws of the jurisdiction in which they are organized and have the
requisite corporate or similar power and authority to carry on their business as
now being conducted. The Note Holding Subsidiaries are each wholly owned
Subsidiaries of Seller.
(b) Notes. Seller's Note Holding Subsidiaries are the registered
Holders of the Notes and the rights, title and interests of Seller and its Note
Holding Subsidiaries in and to the Notes are free and clear of any claims,
pledges, liens, charges and encumbrances of any sort.
(c) Authority; Enforcement. Seller has all requisite corporate power
and authority to enter into this Agreement and to consummate the transactions
contemplated by this Agreement. The execution and delivery of this Agreement and
the consummation by Seller and Note Holding Subsidiaries of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate action on the part of Seller and the Note Holding Subsidiaries. This
Agreement has been duly executed and delivered by Seller and constitutes a valid
and binding obligation of Seller, enforceable against Seller in accordance with
its terms (assuming due authorization, execution and delivery by Purchaser),
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of
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general applicability relating to or affecting creditors' rights and to general
equity principles.
(d) Compliance with Obligations. The execution and delivery by
Seller of this Agreement does not, and the consummation of the transactions
contemplated by this Agreement and compliance with the provisions of this
Agreement (including without limitation the sale and transfer of the Notes and
assignment of rights under the Sale and Purchase Agreement to Purchaser) will
not, conflict with, or result in any violation of or default (with or without
notice or lapse of time or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of a material benefit
under, or result in the creation of any lien or security interest upon any of
the properties or assets of Seller or the Note Holding Subsidiaries under, (i)
the organizational documents of Seller or any of the Note Holding Subsidiaries,
(ii) the Sale and Purchase Agreement and the Notes; (iii) any loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license applicable to Seller or any
of the Note Holding Subsidiaries or their respective properties or assets, (iv)
any licenses, franchises, permits, concessions or other governmental approvals
granted to or held by Seller or any of the Note Holding Subsidiaries, or (v) any
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to Seller or any of the Note Holding Subsidiaries or their respective properties
or assets, other than, in the case of clauses (iii), (iv) and (v), any such
conflicts, violations, defaults, rights, liens or security interests that
individually or in the aggregate would not (x) have a material adverse effect on
Seller, (y) impair the ability of Seller to perform its obligations under this
Agreement in any material respect or (z) delay in any material respect or
prevent the consummation of any of the transactions contemplated hereby.
(e) Consents and Approvals. Except for such consents, approvals,
orders or authorizations the failure of which to be made or obtained would not
reasonably be expected to have a material adverse effect on Seller, impair the
ability of Seller to perform its obligations under this agreement in any
material respect or delay in any material
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respect or prevent the consummation of any of the transactions contemplated
hereby, no consent, approval, order or authorization of, or registration,
declaration or filing with, any national, state, regional or local government or
any court, administrative or regulatory agency or commission or other
governmental authority or agency (a "Governmental Entity") or any other Person
is required by or with respect to Seller or any of the Note Holding Subsidiaries
in connection with the execution and delivery of this Agreement or the
consummation by Seller of any of the transactions contemplated by this
Agreement.
(f) Litigation. There is no suit, action or proceeding pending or,
to the knowledge of Seller, threatened against or affecting Seller or any of the
Note Holding Subsidiaries that individually or in the aggregate could reasonably
be expected to impair the ability of Seller to perform its obligations under
this Agreement in any material respect or delay in any material respect or
prevent the consummation of any of the transactions contemplated by this
Agreement, nor is there any judgment, decree, injunction, rule or order of any
Governmental Entity or arbitrator outstanding against Seller or any of the Note
Holding Subsidiaries having, or which could reasonably be expected to have, any
effect referred to in this paragraph.
(g) ITI. ITI has not breached and is not currently in breach
(whether or not waived) of any of its obligations under the Sale and Purchase
Agreement or the Notes and has performed all its obligations in accordance with
the terms thereof.
(h) Interest on the Notes. ITI has paid all interest payments due
under the Notes to the date hereof on time and in accordance with the terms
thereof.
Section 4.2 Representations and Warranties of Purchaser. Purchaser
hereby makes the following representations and warranties to Seller:
(a) Organization, Standing and Corporate Power. Purchaser is a
company duly organized and validly existing under the laws of Luxembourg and has
the requisite corporate
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power and authority to carry on its business as now being conducted.
(b) Authority; Enforcement. Purchaser has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Purchaser and the consummation by Purchaser of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of Purchaser. This Agreement has been duly executed and delivered by Purchaser
and constitutes a valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms (assuming due authorization, execution
and delivery by Seller), subject to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(c) Compliance with Obligations. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated by
this Agreement and compliance with the provisions of this Agreement will not,
conflict with, result in any violation of or default (with or without notice or
lapse of time or both) under, give rise to a right of termination, cancellation
or acceleration of any obligation or loss of a material benefit under, or result
in the creation of any lien or security interest upon any of the properties or
assets of Purchaser under, (i) the organizational documents of Purchaser, (ii)
any loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise or license applicable to
Purchaser or its properties or assets, (iii) any licenses, franchises, permits,
concessions or other governmental approvals granted to or held by Purchaser or
its properties or assets, or (iv) any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Purchaser or its properties or
assets, other than the case of clauses (ii), (iii) and (iv) any such conflicts,
violations, defaults, rights, liens or security interests that individually or
in the aggregate would not (x) have a material adverse effect on Purchaser, (y)
impair the ability of Purchaser to perform its obligations under this Agreement
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in any material respect or (z) delay in any material respect or prevent the
consummation of any of the transactions contemplated hereby.
(d) Consents and Approvals. Except for such consents, approvals,
orders or authorizations the failure of which to be made or obtained would not
reasonably be expected to have a material adverse effect on Purchaser, impair
the ability of Purchaser to perform its obligations under this Agreement in any
material respect or delay in any material respect or prevent the consummation of
any of the transactions contemplated hereby, no consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Entity or other Person is required by or with respect to Purchaser in connection
with the execution and delivery of this Agreement by Purchaser or the
consummation by Purchaser of the transactions contemplated by this Agreement.
(e) Litigation. There is no suit, action or proceeding pending or,
to the knowledge of Purchaser, threatened against or affecting Purchaser that
individually or in the aggregate could reasonably be expected to impair the
ability of Purchaser to perform its obligations under this Agreement in any
material respect or delay in any material respect or prevent the consummation of
any of the transactions contemplated by this Agreement, nor is there any
judgment, decree, injunction, rule or order of any Governmental Entity or
arbitrator outstanding against Purchaser having, or which could reasonably be
expected to have, any effect referred to in this paragraph.
ARTICLE V
FURTHER AGREEMENTS
Section 5.1 Sale and Purchase Agreement.
(a) In the event that Purchaser acquires the Notes from Seller
pursuant to Section 2, on the date of such acquisition Seller shall deliver to
Purchaser and to ITI a notice substantially in the form set forth as Annex E in
accordance with Section 6.1 and Sections 7.5 and 7.6 of the
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Sale and Purchase Agreement assigning to Purchaser all of Seller's rights under
the Sale and Purchase Agreement (except under Sections 5.1, 5.2, 5.3 and 5.4
thereof), provided that any obligations of Seller under the Sale and Purchase
Agreement shall remain obligations of Seller irrespective of such assignment.
(b) If Seller's rights under the Sale and Purchase Agreement (except
under Section 5.1, 5.2, 5.3 and 5.4 thereof) are assigned to Purchaser pursuant
to paragraph (a) above, Purchaser agrees that in the event that ITI breaches its
obligations under Section 5.1 of the Sale and Purchase Agreement to Seller,
Purchaser shall not exercise its right under Section 3.12 of the Sale and
Purchase Agreement to declare all the Notes to be due and payable as a result of
such breach unless Seller delivers a notice (the "Enforcement Notice") to
Purchaser requesting that Purchaser take such action. Purchaser shall, no later
than ten Business Days following receipt of an Enforcement Notice (during which
time the breach by ITI of its obligations under Section 5.1 may be cured),
declare all the Notes to be due and payable in accordance with Section 3.12 of
the Sale and Purchase Agreement. Purchaser shall be entitled to retain all
amounts paid by ITI upon enforcement of the Notes. If ITI pays all amounts owing
to Seller under Section 5.1 of the Sale and Purchase Agreement after enforcement
but prior to payment of the Notes, Seller shall promptly notify Purchaser and
Purchaser at its option may seek to enter into discussions with ITI to
restructure the Notes.
Section 5.2 Subsequent Default on Interest Payments. If after the
date hereof, but prior to the Option Settlement Date, ITI fails to make any
interest payments to Seller when due under the Notes, the Call Option Price, Put
Option Price and Third Party Option Price shall not change as a result of such
breach, but Purchaser after the Option Settlement Date shall have the right (but
not any obligation) to claim payment of such overdue interest payments. Seller
shall notify Purchaser in writing on the Option Settlement Date of the amount of
any such overdue interest payments. If Purchaser receives proceeds from any sale
by Purchaser of the Notes, payments by ITI of principal and interest on the
Notes or any other amount from ITI in respect of the Notes ("Recovery Amounts"),
Purchaser shall pay from each Recovery Amount an amount that bears a
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proportion to such Recovery Amount equal to the CME Share Proportion up to and
until Purchaser has paid to Seller the amount of such overdue interest payments
less Seller's proportionate share (based on the CME Share Proportion) of any
reasonable legal fees or other out-of-pocket expenses incurred by Purchaser in
obtaining the Recovery Amounts (the "CME Payment Amounts"). If Purchaser has not
received Recovery Amounts sufficient to pay the CME Payment Amounts in
accordance with the previous sentence and Purchaser receives ITI Shares upon the
conversion of the Notes (the "Recovery Shares"), Purchaser shall transfer and
deliver to Seller a number of ITI Shares that bears a proportion to the number
of Recovery Shares equal to the CME Share Proportion, less a number of ITI
Shares equal in value to Seller's proportionate share (based on the CME Share
Proportion) of any legal fees or other expenses incurred by Purchaser in
obtaining the Recovery Shares. Purchaser shall have no obligation to pay to
Seller any amounts or deliver ITI Shares in respect of any interest payments on
the Notes that have not been paid to Seller prior to the date hereof.
Section 5.3 Fees and Expenses. Each party shall pay the fees and
expenses of its counsel, accountants, investment bankers, brokers, lenders and
other advisers and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1 Notices. All notices or services of process provided for
herein shall be validly given or served, as the case may be, if in writing and
delivered personally, or by confirmed facsimile (followed promptly by an
original copy of such notice or service of process delivered by registered
mail), if to:
The Purchaser:
SBS Broadcasting S.A.
8-10 rue Mathias Hardt
L-1717 Luxembourg
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Attention: Corporate Secretary
Facsimile: +35 2 40 7804
With copies to:
SBS Broadcasting S.A.
36 St. Ives Street
London SW3 2ND, England
Attention: Corporate Secretary
Facsimile: +44 020 7590 3601
and
Sullivan & Cromwell
St. Olave's House
9a Ironmonger Lane
London EC2V 8EY, England
Attention: William A. Plapinger
Facsimile: +44 020 7710 6565
The Seller:
Central European Media Enterprises Ltd.
Swan House
52 Poland Street
London W1V 3DF
Attention: Legal Department
Finance Department
Facsimile: +44 020 7292 7948
+44 020 7292 7903
With copies to:
Debevoise & Plimpton
875 Third Avenue
New York, NY 10022
USA
Attention: Greg Gooding and Louis Begley
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Facsimile: +1 212 909 6836
or to such other address or facsimile number as either party may, from time to
time, designate in a written notice given to the other party in a like manner.
Section 6.2 Survival of Representations and Warranties. The
representations, warranties and agreements contained in this Agreement shall
survive the transfer of the Notes at the Option Settlement Date.
Section 6.3 Assignment. This Agreement and all of the provisions
hereof shall be binding upon, and inure to the benefit of, the parties hereto
and their respective successors and permitted assigns. Neither this Agreement
nor any of the rights herein, nor any of the other interests and obligations
created hereunder shall be assigned or delegated by Seller, and any such
attempted assignment or delegation shall be void. This Agreement, the rights
granted to Purchaser herein, or the obligations of Purchaser created hereunder,
may be assigned or delegated by Purchaser to a Subsidiary or affiliate of
Purchaser.
Section 6.4 Submission to Jurisdiction; Consent to Service of
Process. With respect to any claim arising out of this Agreement (a) each of
Purchaser and Seller irrevocably submits to the nonexclusive jurisdiction of the
United States District Court located in the Borough of Manhattan in The City of
New York and (b) each of Purchaser and Seller irrevocably waives any objection
which it may have at any time to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in any such
court, irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum and further
irrevocably waives the right to object, with respect to such suit, action or
proceeding brought in any such court, that such court does not have jurisdiction
over such party. Each of Purchaser and Seller agrees that service of process
upon it in any such suit, action or proceeding shall be deemed in every respect
effective service of process upon it if given in the manner set forth in Section
6.1. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IT MAY HAVE IN
CONNECTION WITH ANY SUCH SUIT, ACTION OR PROCEEDING.
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Section 6.5 Headings; Internal References. The headings herein are
for convenience only, do not constitute a part of this Agreement, and shall not
be deemed to limit or affect any of the provisions hereof. Unless otherwise
specified, references herein to "Section" or "Sections" and to "Annex" or
"Annexes" are to Sections of, and Annexes to, this Agreement.
Section 6.6 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York.
Section 6.7 Specific Performance. Purchaser and Seller acknowledge
and agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent or cure
breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof and thereof in any federal court of the United
States or competent courts in Luxembourg or Bermuda having jurisdiction, this
being in addition to any other remedy to which they may be entitled by law or
equity.
Section 6.8 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 6.9 Severability. If, at any time, any provision hereof is
or becomes illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions hereof nor the legality, validity or enforceability of such provision
under the law of any other jurisdiction shall in any way be affected or impaired
thereby.
Section 6.10 Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the matters covered hereby and will
supersede and replace all prior oral or written agreements covering the matters
contemplated in this Agreement. This Agreement may be amended only by an
agreement in writing executed by the
-17-
parties hereto. Time shall be of the essence of this Agreement.
-18-
IN WITNESS WHEREOF, the parties have hereunto signed their names in
the space provided below.
SBS BROADCASTING S.A.
By: /s/ M. G. Fennema
-----------------------
Name: M. G. Fennema
Title: Attorney-in-Fact
CENTRAL EUROPEAN MEDIA
ENTERPRISES LTD.
By: /s/ Fred T. Klinkhammer
-----------------------
Name: Fred T. Klinkhammer
Title: President & CEO
-19-
ANNEX A
-------
"Agreement" means the Option Agreement, dated as of February 21, 2000,
between SBS Broadcasting S.A. and Central European Media Enterprises Ltd.
"Business Day" means any day that is not a Saturday or Sunday on which
banks are open for business and not required or permitted to be closed in The
City of New York, Bermuda or Luxembourg.
"Call Option" has the meaning specified in Section 2.1(a) of this
Agreement.
"Call Option Base Price" has the meaning specified in Section 2.1(b) of
this Agreement.
"Call Option Period" has the meaning specified in Section 2.1(a) of this
Agreement.
"Call Option Price" has the meaning specified in Section 2.1(b) of this
Agreement.
"Closing" means, in respect of the Slovenian Transaction, the purchase by
Seller from Purchaser of a controlling interest in Kanal A, [a Slovenian
company] pursuant to a proposed Share Purchase Agreement to be entered into by
the parties.
"CME Payment Amounts" has the meaning specified in the Section 5.2 of this
Agreement.
"CME Share Proportion" means a proportion equal to the proportion that (a)
the amount of any interest payments ITI has failed to make to Seller when due
under the Notes between the date hereof and the Option Settlement Date bears to
(b) the aggregate amount of principal and interest outstanding on the Notes at
the Option Settlement Date.
"Enforcement Notice" has the meaning specified in Section 5.1(b) of this
Agreement.
"Escrow Account" means the escrow account established by Seller for the
benefit of Purchaser in accordance with Sections 3.1 and 3.2 of this Agreement.
A-1
"Escrow Agent" means The Chase Manhattan Bank, or such other escrow agent
as may be agreed in writing by the parties hereto.
"Governmental Entity" has the meaning specified in Section 4.1(e) of this
Agreement.
"Holder" has the meaning assigned to it in the Sale and Purchase
Agreement.
"ITI" has the meaning as specified in the recitals to this Agreement.
"ITI Shares" has the meaning specified in the recitals to this Agreement.
"Note Holding Subsidiary" means a Subsidiary of Seller that holds one of
the Notes.
"Notes" means the US$40,000,000 in aggregate principal amount of senior
convertible notes of ITI issued pursuant to the Sale and Purchase Agreement and
held by Seller and its Subsidiaries.
"Option Settlement Date" has the meaning specified in Section 3.1(c) of
this Agreement.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Purchaser" has the meaning specified in the recitals to this Agreement.
"Put Option" has the meaning specified in Section 2.2(a) of this
Agreement.
"Put Option Period" has the meaning specified in Section 2.2(a) of this
Agreement.
"Put Option Price" has the meaning specified in Section 2.2(b) of this
Agreement.
"Recovery Amounts" has the meaning specified in Section 5.2 of this
Agreement.
A-2
"Recovery Shares" has the meaning specified in Section 5.2 of this
Agreement.
"Sale and Purchase Agreement" has the meaning specified in the recitals to
this Agreement.
"Seller" has the meaning specified in the recitals to this Agreement.
"Slovenian Transaction" means the proposed sale of by the Purchaser of a
controlling interest in Kanal A d.d., a Slovenian company, to Seller pursuant to
a proposed Share Purchase Agreement to be entered into by the parties.
"Subsidiary" means, with respect to any Person, any other Person of which
shares of capital stock or other interests having a majority of the general
voting power in electing the board of directors (or body exercising similar
authority) are, at the time and of which any determination is being made,
beneficially owned by the first Person.
"Third Party Offer Notice" has the meaning specified in Section 2.3(a) of
this Agreement.
"Third Party Offer Price" means the aggregate cash consideration offered
by a third party for the Notes, less the value of any consideration (in cash or
kind) provided by Seller to such third party or any offsetting transaction
between Seller and such third party in connection with or in any way related to
such third party's offer for the Notes.
"Third Party Option" has the meaning specified in Section 2.3(a) of this
Agreement.
"Third Party Option Price" has the meaning specified in Section 2.3(b) of
this Agreement.
A-3
ANNEX B
Form of Call Option or
Third Party Option Exercise Notice
----------------------------------
[Date]
TO: Central European Media Enterprises Ltd.,
Swan House
52 Poland Street
London W1V 3DF, England
Fax No.: +44 020 7292 7948
+44 020 7292 7903
Attention: Legal Department
Finance Department
Reference is made to the Option Agreement, dated as of February 21,
2000 (the "Option Agreement"), by and between SBS Broadcasting S.A., a
Luxembourg company ("Purchaser"), and Central European Media Enterprises Ltd., a
Bermuda company ("Seller"). Capitalized terms used but not otherwise defined
herein have the meanings specified in the Option Agreement.
Purchaser hereby notifies Seller that it is exercising the [Call
Option] [Third Party Option] with respect to all the Notes pursuant to the
provisions of the Option Agreement. Purchaser hereby nominates [date] as the
Option Settlement Date pursuant to Section 3.1 of the Option Agreement.
SBS BROADCASTING S.A.
By:
-------------------------
Name:
Title:
B-1
ANNEX C
Form of Put Option Notice
-------------------------
[Date]
TO: SBS Broadcasting S.A.,
8-10 rue Mathias Hardt
L-1717 Luxembourg
Fax No.: +35 2 40 7804
Attention: Corporate Secretary
SBS Broadcasting S.A.,
36 St. Ives Street
London SW3 2ND, England
Fax No.: +44 020 7590 3601
Attention: Corporate Secretary
Reference is made to the Option Agreement, dated as of February 21,
2000 (the "Option Agreement"), by and between SBS Broadcasting S.A., a
Luxembourg company ("Purchaser"), and Central European Media Enterprises Ltd., a
Bermuda company ("Seller"). Capitalized terms used but not otherwise defined
herein have the meanings specified in the Option Agreement.
Seller hereby notifies Purchaser that it is exercising the Put
Option with respect to all the Notes pursuant to the provisions of the Option
Agreement. Seller hereby nominates [date] as the Option Settlement Date pursuant
to Section 3.1 of the Option Agreement.
CENTRAL EUROPEAN
MEDIA ENTERPRISES LTD.
By:
-------------------------
Name:
Title:
C-1
ANNEX D
-------
Form of Escrow Agreement
------------------------
ESCROW AGREEMENT
----------------
THIS ESCROW AGREEMENT, dated as of [ ], 2000 (the "Escrow Agreement"), is
by and among SBS Broadcasting S.A., a company organized under the laws of
Luxembourg ("SBS"), Central European Media Enterprises Ltd., a company organized
under the laws of Bermuda ("CME"), and The Chase Manhattan Bank, a New York
State chartered bank (the "Escrow Agent").
WHEREAS, SBS and CME are parties to an Option Agreement, dated as of
February 21, 2000 (the "Option Agreement"), pursuant to which (i) CME grants SBS
a call option (the "Call Option") to purchase US$40,000,000 in aggregate
principal amount of senior convertible notes (the "Notes") of International
Trading and Investments Holding S.A., a Luxembourg company ("ITI"), for
US$37,250,000 by delivery of notice to CME on or prior to June 30, 2000, subject
to extension, and (ii) SBS grants CME a put option (the "Put Option") to sell
the Notes to SBS for US$25,000,000 by delivery of notice to CME on or prior to
June 30, 2000, subject to extension;
WHEREAS, SBS and CME intend to execute a Purchase Agreement (the "Share
Purchase Agreement" and the transactions referred to therein, the "Slovenia
Transactions"), pursuant to which SBS or its nominee would agree to sell to CME
or its nominee a controlling interest in Kanal A d.d., a Slovenian company, for
US$[12,000,000];
WHEREAS, if prior to June 30, 2000, (i) SBS exercises the Call Option or
otherwise purchases the Notes or (ii) if CME exercises the Put Option, each of
SBS and CME wants US$12,000,000 of the purchase price in connection therewith to
be held in escrow (the "Escrow Amount") until the earlier of the closing (as
defined in the Share Purchase Agreement) of the Slovenia Transactions and June
30, 2000, on the terms and subject to the conditions set forth herein;
D-1
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
contained in this Agreement, and intending to be legally bound hereby, the
parties hereby agree as follows:
1. Definitions. As used in this Agreement, all capitalized terms used
herein shall have the meanings set forth in the preamble to this Escrow
Agreement or as set forth below:
"Business Day" means any day other than a Saturday, Sunday or public
holiday under the laws of the State of New York or other day on which banking or
lending institutions are authorized or obligated to close in New York State.
"Escrow Fund" means the amount held by the Escrow Agent in escrow
under this Escrow Agreement, consisting of the Escrow Amount and any investment
income thereon.
"Permitted Investments" means:
(a) Demand deposit accounts, money market accounts or bankers' acceptances
maturing in 90 days or less from the date of issue of not less than the
highest rating then available from Standard and Poor's Corporation ("S&P")
or Moody's Investor Services, Inc. ("Moody's") at the time of investment;
(b) Certificates of deposit maturing in 90 days or less from the date of
deposit and either placed by or with a United States bank with stockholder
capital exceeding Fifty Million Dollars ($50,000,000) or a minimum credit
rating at the time of investment of A from S&P or Moody's for its debt
instruments (so long as there has been no public announcement by S&P or
Moody's that such credit rating may be subject to a negative adjustment),
and the accounts of which are insured by the Federal Deposit Insurance
Corporation or any successor thereto (an "Acceptable Bank");
(c) Securities which possess each of the following characteristics: (i)
commonly known as "commercial paper", (ii) due and payable within 90 days
from the date of issue, (iii) issued by any corporation organized under
the laws of the United States or of any
D-2
State thereof and (iv) ratings which, at the time of the investment
therein, are not less than the highest rating then available from Moody's,
S&P or another nationally recognized rating agency;
(d) United States Treasury obligations maturing in 180 days or less from
the date of purchase;
(e) Certificates issued by the Government National Mortgage Association
maturing in 90 days or less from the date of purchase; or
(f) An interest in any fund or other investment vehicle, including,
without limitation, a registered investment company maintained by an
Acceptable Bank, that invests only in any of the items specified in
clauses (a) through (e) above, including a registered investment company
for which the Escrow Agent or its affiliates provides services and are
separately and additionally compensated therefor.
2. Acceptance of Escrow. The Escrow Agent hereby acknowledges the
receipt of the Escrow Amount. The Escrow Agent shall hold and dispose of the
Escrow Fund and shall act as Escrow Agent with respect to the Escrow Fund in
accordance with the terms, conditions and provisions of this Agreement.
3. Investment of Escrow Amount; Taxes.
----------------------------------
(a) The Escrow Agent shall invest the Escrow Amount initially in Escrow
Agent's money market account. Thereafter, the Escrow Agent shall invest the
Escrow Fund in such Permitted Investments as SBS and CME jointly may direct in
writing. All securities and deposits representing investment of the Escrow Fund
shall be held in the name of the Escrow Agent or its nominee, or in bearer form,
and the Escrow Agent may deposit any securities or other property in a
depository or clearing corporation. The Escrow Agent shall receive and collect
all funds payable in connection with such investment. Except to the extent that
payment of the Escrow Fund is required to be made pursuant to this Escrow
Agreement, the Escrow Agent shall retain the Escrow Fund and invest the Escrow
Fund as provided for herein. In no event shall the Escrow Agent have any
liability under this Escrow Agreement for investment losses incurred on any
D-3
investment or reinvestment made in accordance with the terms of this Escrow
Agreement.
(b) The parties hereto agree that, to the extent that the Escrow Amount
exceeds the aggregate purchase price in connection with the Slovenia
Transactions owed to SBS, as agreed by each of SBS and CME, the remainder of the
principal of the Escrow Amount and all interest or other income earned thereon
shall be distributed to CME pursuant to Section 5 below.
(c) All taxes in respect of earnings on the Escrow Amount shall be the
obligation of and shall be paid when due by CME, who shall indemnify and hold
SBS and the Escrow Agent harmless from and against all taxes.
4. Investment of Income. All interest and other income realized in
respect of the Escrow Amount shall be reinvested and held as a portion of the
Escrow Fund.
5. Distribution of Escrow Fund. The Escrow Agent shall continue to hold
the Escrow Fund in its possession until authorized hereunder to distribute the
Escrow Fund as follows:
(a) In connection with the Escrow Amount, upon the closing (as
defined in the Share Purchase Agreement) of the Slovenia
Transactions, the Escrow Agent shall upon receipt of the joint
notice specified in Section 3.2 of the Option Agreement (i)
distribute to SBS such amounts equal to the aggregate purchase
price under the Slovenia Transactions, as agreed by each of SBS
and CME, by wire transfer of immediately available funds to SBS
into such account as SBS may specify in writing, and (ii)
distribute any remaining amounts of the Escrow Account, including
interest thereon, by wire transfer of immediately available funds
to CME into such account as CME may specify in writing.
(b) In the event that the Slovenia Transactions do not close by June
30, 2000, the Escrow Agent shall upon receipt of the joint notice
specified in Section 3.2 of the Option
D-4
Agreement immediately distribute the Escrow Amount, including
interest thereon, by wire transfer of immediately available funds
to CME into such account as CME may specify in writing.
Promptly after the Termination Date (as defined in Section 8 hereof), the
Escrow Agent shall deliver to SBS and CME a full and complete final statement
with respect to the Escrow Fund.
6. Duties and Responsibilities of the Escrow Agent. The Escrow Agent shall
have no duties or obligations hereunder except those specifically set forth
herein, and such duties and obligations shall be determined solely by the
express provisions of this Escrow Agreement.
(a) Each of SBS and CME acknowledges and agrees that the Escrow Agent: (i)
shall be obligated only for the performance of such duties as are specifically
set forth in this Escrow Agreement; (ii) shall not be obligated to take any
legal or other action hereunder which might in its reasonable judgment involve
expense or liability unless it shall have been furnished with indemnity
acceptable to it; (iii) may rely on and shall be protected in acting or
refraining from acting upon any written notice, instruction, instrument,
statement, request or document furnished to it hereunder and believed by it to
be genuine and to have been signed or presented by the proper person, and shall
have no responsibility for determining the accuracy thereof, and (iv) may
consult counsel satisfactory to it, including its in-house counsel, and the
advice or opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the advice or opinion of counsel.
(b) Neither the Escrow Agent nor any of its directors, officers or
employees shall be liable to anyone for any action taken or omitted to be taken
by it or any of its directors, officers or employees hereunder except in the
case of gross negligence, bad faith or willful misconduct. Each of SBS and CME
jointly and severally covenants and agrees to indemnify the Escrow Agent and
hold it harmless without limitation from and against any loss, liability or
expense of any nature incurred by the Escrow Agent arising
D-5
out of or in connection with this Escrow Agreement or with the administration of
its duties hereunder, including, but not limited to, reasonable legal fees and
expenses and other costs and expenses of defending or preparing to defend
against any claim of liability in the premises, unless such loss, liability or
expense shall be caused by the Escrow Agent's gross negligence, bad faith or
willful misconduct. In no event shall the Escrow Agent be liable for indirect,
punitive, special or consequential damages.
(c) Each of SBS and CME agree, jointly and severally, to indemnify and
hold the Escrow Agent harmless from and against any liabilities that may be
assessed against the Escrow Agent on any such payment or other activities under
this Escrow Agreement except those caused by Escrow Agent's gross negligence,
bad faith or willful misconduct, including costs and expenses (including
reasonable legal fees and expenses), interest and penalties.
(d) The Escrow Agent shall have no more or less responsibility or
liability on account of any action or omission of any book-entry depository or
sub-escrow agent employed by the Escrow Agent than any such book-entry
depository or sub-escrow agent has to the Escrow Agent, except to the extent
that such action or omission of any book-entry depository or sub-escrow agent
was caused by the Escrow Agent's own gross negligence, bad faith or willful
misconduct.
(e) The Escrow Agent may at any time resign as Escrow Agent hereunder by
giving thirty (30) days prior written notice of resignation to SBS and CME. The
Escrow Agent may also be removed by the joint written notice of SBS and CME.
Prior to the effective date of the resignation or removal as specified in such
notice, SBS and CME will issue to the Escrow Agent a written instruction
authorizing redelivery of the Escrow Fund to a successor escrow agent that they
select. Such successor escrow agent shall be a bank or trust company, organized
and existing under the laws of the United States or any state thereof, subject
to examination by state or federal authorities, and shall have capital and
surplus in excess of $50,000,000. If no successor escrow agent is named by SBS
and CME, the Escrow Agent may apply to a court of competent jurisdiction for the
appointment of a successor escrow agent. The provisions of Sections 6(b) and
D-6
6(c) shall survive the resignation or removal of the Escrow Agent or the
termination of this Escrow Agreement.
(f) It is understood and agreed that should any dispute arise with respect
to the delivery, ownership, right of possession, and/or disposition of the
Escrow Fund, or should any claim be made upon the Escrow Fund by a third party,
the Escrow Agent upon receipt of a written notice of such dispute or claim by
the parties hereto, is authorized and directed to retain in its possession
without liability to anyone, any portion of the Escrow Fund in dispute, until
such dispute shall have been settled either by the mutual agreement of the
parties involved or by the final, non-appealable order of a court of competent
jurisdiction. The Escrow Agent may, but shall be under no duty whatsoever to,
institute or defend any legal proceeding which relates to the Escrow Fund.
(g) The Escrow Agent shall not be responsible for delays or failures in
performance resulting from acts beyond its control. Such acts shall include but
not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics,
governmental regulations superimposed after the fact, fire, computer viruses,
power failures, earthquakes or other disasters.
7. Escrow Fees. The Escrow Agent shall be entitled to receive reasonable
compensation for its services hereunder pursuant to the schedule of fees
attached hereto as Exhibit A and made a part hereof and, in addition thereto,
shall be reimbursed for all out of pocket expenses, including reasonable
attorneys' fees, actually and reasonably incurred by it in connection with the
performance of its duties and obligations under this Escrow Agreement. All such
fees and expenses shall be borne jointly by SBS and CME and not out of the
Escrow Fund. The Escrow Agent shall render monthly statements, including therein
a statement of all interest or other income earned on the Escrow Fund. The
Escrow Agent shall have a lien on and may offset against the Escrow Amount to
the extent any amounts due to it hereunder are not paid when due.
8. Term. This Agreement shall terminate on the earlier to occur of (a) the
disbursement of all of the Escrow Fund, (b) o, 2000 or (c) the termination by a
written notice to the Escrow Agent from each of SBS and CME
D-7
(the "Termination Date"). Upon payment of any of the Escrow Fund as provided for
herein, Escrow Agent shall have no further responsibility for any funds so paid.
9. Notices. All notices, consents, demands, requests, approvals and other
communications which are required or may be given hereunder shall be in writing
and shall be deemed to have been duly given (a) when delivered personally, (b)
the second day following the day on which the same has been delivered prepaid to
a national overnight air courier service or (c) three (3) business days
following deposit in the mail, registered or certified postage prepaid in each
case, addressed as follows:
D-8
If to SBS, at:
SBS Broadcasting S.A.
8-10 rue Mathias Hardt
L-1717 Luxembourg
Attn: Corporate Secretary
Fax: +00 35 2 40 7804
With copies to:
SBS Broadcasting S.A.
36 Ives Street
London SW3 2ND, England
Attn: Corporate Secretary
Fax: +44 020 7590 3601
and
Sullivan & Cromwell
St. Olave's House
9a Ironmonger Lane
London EC2V 8EY, England
Attn: William A. Plapinger
Fax: +44 020 7710 6565
If to CME, at:
Central European Media Enterprises Ltd.
Swan House
52 Poland Street
London W1V 3DF, England
Attn: Legal Department
Finance Department
Fax: +44 020 7292 7948
+44 020 7292 7903
D-9
With copies to:
Debevoise & Plimpton
875 Third Avenue
New York, NY 10022 USA
Attn: Greg Gooding and Louis Begley
Fax: +1 212 909 6836
If to Escrow Agent:
The Chase Manhattan Bank
[Address]
[Address]
Attn:
Phone:
Fax:
or to such other person or persons at such address or addresses as may be
designated by written notice hereunder. Any notice given in accordance with this
Section may be given by a party hereto or by such party's counsel. All notices
given under this Agreement shall be given to all persons listed above for
notice, except that SBS and CME may give investment instructions under Section
3(a) hereof only to Escrow Agent.
10. Applicable Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
11. Entire Agreement; Modification; Amendment.
(a) The entire agreement of SBS and CME with the Escrow Agent is contained
in this Escrow Agreement. The Escrow Agent is not expected or required to be
familiar with the provisions of any other instrument, agreement or document and
shall not be charged with any responsibility or liability in connection with the
observance or non-observance by any other party whatsoever of the provisions of
any such other instrument, agreement or document.
(b) This Escrow Agreement may not be altered or modified without the
consent of the parties hereto, which consent shall not constitute a waiver of
any of the terms or
D-10
conditions of this Escrow Agreement, unless such waiver is specified in writing,
and then only to the extent so specified. A waiver of any of the terms and
conditions of this Escrow Agreement on one occasion shall not constitute a
waiver of the other terms and conditions of this Escrow Agreement, or of such
terms and conditions on any other occasion. This Agreement may not be amended
except in a writing executed by each party to this Escrow Agreement.
12. Counterparts; Reproduction of Documents.
(a) This Agreement may be executed in several counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same document.
(b) This Escrow Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, and (b) certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
optical disk, micro-card, miniature photographic or other similar process. The
parties hereto agree that any such reproduction shall be admissible in evidence
as the original itself in any judicial or administrative proceeding, whether or
not the original is in existence and whether or not such reproduction was made
by a party in the regular course of business, and that any enlargement,
facsimile or further reproduction shall likewise be admissible in evidence.
13. Headings. Headings of the Sections in this Agreement are for reference
purposes only and shall not be deemed to have any substantive effect.
14. Binding Effect; Benefits. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs,
administrators, executors, successors and permitted assigns; provided, however,
that nothing in this Agreement, expressed or implied, is intended to confer on
any person other than the parties hereto or their respective successors and
permitted assigns, any rights and remedies, obligations or liabilities under or
by reason of this Agreement.
D-11
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first written above.
SBS BROADCASTING S.A.
By:__________________________
Name:
Title:
CENTRAL EUROPEAN MEDIA
ENTERPRISES LTD.
By:__________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
AS ESCROW AGENT
By:__________________________
Name:
Title:
D-12
ANNEX E
Form of Notice of Assignment
----------------------------
[Date]
TO: SBS Broadcasting S.A.,
8-10 rue Mathias Hardt
L-1717 Luxembourg
Fax No.: +35 2 40 7804
Attention: Corporate Secretary
SBS Broadcasting S.A.,
36 St. Ives Street
London SW3 2ND, England
Fax No.: +44 020 7590 3601
Attention: Corporate Secretary
International Trading and Investments Holdings S.A.
[Address]
[Address]
Fax No.:
Attention:
Reference is made to the Option Agreement, dated as of February 21,
2000 (the "Option Agreement"), by and between SBS Broadcasting S.A., a
Luxembourg company ("Purchaser"), and Central European Media Enterprises Ltd., a
Bermuda company ("Seller"), and to the Sale and Purchase Agreement, dated
December 10, 1998, by and between International Trading and Investments Holdings
S.A., a Luxembourg company ("ITI") and Seller.
Seller hereby notifies Purchaser pursuant to Sections 5.1(a) and 6.1
of the Option Agreement and notifies ITI pursuant to Sections 7.5 and 7.6 of the
Sale and Purchase Agreement that in connection with the acquisition by Purchaser
from Seller of an aggregate principal amount of US$40,000,000 convertible senior
notes of ITI issued under
E-1
the Sale and Purchase Agreement, Seller hereby assigns all its rights, and not
its obligations, under the Sale and Purchase Agreement (except under Section
5.1, 5.2, 5.3 and 5.4 thereof) to Purchaser.
CENTRAL EUROPEAN MEDIA
ENTERPRISES LTD
By:
----------------------------
Name:
Title:
E-2